Of the Punishment of Death.
The useless profusion of punishments, which has never made men better
induces me to inquire, whether the punishment of death be really just or
useful in a well governed state? What right, I ask, have men to cut the
throats of their fellow-creatures? Certainly not that on which the
sovereignty and laws are founded. The laws, as I have said before, are only
the sum of the smallest portions of the private liberty of each individual,
and represent the general will, which is the aggregate of that of each
individual. Did any one ever give to others the right of taking away his
life? Is it possible that, in the smallest portions of the liberty of each,
sacrificed to the good of the public, can be contained the greatest of all
good, life? If it were so, how shall it be reconciled to the maxim which
tells us, that a man has no right to kill himself, which he certainly must
have, if he could give it away to another?
But the punishment of death is not authorised by any right; for I have
demonstrated that no such right exists. It is therefore a war of a whole
nation against a citizen whose destruction they consider as necessary or
useful to the general good. But if I can further demonstrate that it is
neither necessary nor useful, I shall have gained the cause of humanity.
The death of a citizen cannot be necessary but in one case: when, though
deprived of his liberty, he has such power and connections as may endanger
the security of the nation; when his existence may produce a dangerous
revolution in the established form of government. But, even in this case, it
can only be necessary when a nation is on the verge of recovering or losing
its liberty, or in times of absolute anarchy, when the disorders themselves
hold the place of laws: but in a reign of tranquillity, in a form of
government approved by the united wishes of the nation, in a state well
fortified from enemies without and supported by strength within, and
opinion, perhaps more efficacious, where all power is lodged in the hands of
a true sovereign, where riches can purchase pleasures and not authority,
there can be no necessity for taking away the life of a subject.
If the experience of all ages be not sufficient to prove, that the
punishment of death has never prevented determined men from injuring
society, if the example of the Romans, if twenty years' reign of Elizabeth,
empress of Russia, in which she gave the fathers of their country an example
more illustrious than many conquests bought with blood; if, I say, all this
be not sufficient to persuade mankind, who always suspect the voice of
reason, and who choose rather to be led by authority, let us consult human
nature in proof of my assertion.
It is not the intenseness of the pain that has the greatest effect on the
mind, but its continuance; for our sensibility is more easily and more
powerfully affected by weak but repeated impressions, than by a violent but
momentary impulse. The power of habit is universal over every sensible
being. As it is by that we learn to speak, to walk, and to satisfy our
necessities, so the ideas of morality are stamped on our minds by repeated
impression. The death of a criminal is a terrible but momentary spectacle,
and therefore a less efficacious method of deterring others than the
continued example of a man deprived of his liberty, condemned, as a beast of
burden, to repair, by his labour, the injury he has done to society, If I
commit such a crime, says the spectator to himself, I shall be reduced to
that miserable condition for the rest of my life. A much more powerful
preventive than the fear of death which men always behold in distant
obscurity.
The terrors of death make so slight an impression, that it has not force
enough to withstand the forgetfulness natural to mankind, even in the most
essential things, especially when assisted by the passions. Violent
impressions surprise us, but their effect is momentary; they are fit to
produce those revolutions which instantly transform a common man into a
Lacedaemonian or a Persian; but in a free and quiet government they ought to
be rather frequent than strong.
The execution of a criminal is to the multitude a spectacle which in some
excites compassion mixed with indignation. These sentiments occupy the mind
much more than that salutary terror which the laws endeavor to inspire; but,
in the contemplation of continued suffering, terror is the only, or at least
predominant sensation. The severity of a punishment should be just
sufficient to excite compassion in the spectators, as it is intended more
for them than for the criminal.
A punishment, to be just, should have only that degree of severity which is
sufficient to deter others. Now there is no man whop upon the least
reflection, would put in competition the total and perpetual loss of his
liberty, with the greatest advantages he could possibly obtain in
consequence of a crime. Perpetual slavery, then, has in it all that is
necessary to deter the most hardened and determined, as much as the
punishment of death. I say it has more. There are many who can look upon
death with intrepidity and firmness, some through fanaticism, and others
through vanity, which attends us even to the grave; others from a desperate
resolution, either to get rid of their misery, or cease to live: but
fanaticism and vanity forsake the criminal in slavery, in chains and
fetters, in an iron cage, and despair seems rather the beginning than the
end of their misery. The mind, by collecting itself and uniting all its
force, can, for a moment, repel assailing grief; but its most vigorous
efforts are insufficient to resist perpetual wretchedness.
In all nations, where death is used as a punishment, every example supposes
a new crime committed; whereas, in perpetual slavery, every criminal affords
a frequent and lasting example; and if it be necessary that men should often
be witnesses of the power of the laws, criminals should often be put to
death: but this supposes a frequency of crimes; and from hence this
punishment will cease to have its effect, so that it must be useful and
useless at the same time.
I shall be told that perpetual slavery is as painful a punishment as death,
and therefore as cruel. I answer, that if all the miserable moments in the
life of a slave were collected into one point, it would be a more cruel
punishment than any other; but these are scattered through his whole life,
whilst the pain of death exerts all its force in a moment. There is also
another advantage in the punishment of slavery, which is, that it is more
terrible to the spectator than to the sufferer himself; for the spectator
considers the sum of all his wretched moments whilst the sufferer, by the
misery of the present, is prevented from thinking of the future. All evils
are increased by the imagination, and the sufferer finds resources and
consolations of which the spectators are ignorant, who judge by their own
sensibility of what passes in a mind by habit grown callous to misfortune.
Let us, for a moment, attend to the reasoning of a robber or assassin, who
is deterred from violating the laws by the gibbet or the wheel. I am
sensible, that to develop the sentiments of one's own heart is an art which
education only can teach; but although a villain may not be able to give a
clear account of his principles, they nevertheless influence his conduct. He
reasons thus: "What are these laws that I am bound to respect, which make so
great a difference between me and the rich man? He refuses me the farthing I
ask of him, and excuses himself by bidding me have recourse to labour, with
which he is unacquainted."
"Who made these laws? The rich and the great, who never deigned to visit the
miserable hut of the poor, who have never seen him dividing a piece of
mouldy bread, amidst the cries of his famished children and the tears of his
wife. Let us break those ties, fatal to the greatest part of mankind, and
only useful to a few indolent tyrants. Let us attack injustice at its
source. I will return to my natural state of independence. I shall live free
and happy on the fruits of my courage and industry. A day of pain and
repentance may come, but it will be short; and for an hour of grief I shall
enjoy years of pleasure and liberty. King of a small number as determined as
myself, I will correct the mistakes of fortune, and I shall see those
tyrants grow pale and tremble at the sight of him, whom, with insulting
pride, they would not suffer to rank with their dogs and horses."
Religion then presents itself to the mind of this lawless villain, and,
promising him almost a certainty of eternal happiness upon the easy terms of
repentance, contributes much to lessen the horror of the last scene of the
tragedy.
But he who foresees that he must pass a great number of years, even his
whole life, in pain and slavery, a slave to those laws by which he, was
protected, in sight of his fellow-citizens, with whom he lives in freedom
and society, makes an useful comparison between those evils, the uncertainty
of his success, and the shortness of the time in which he shall enjoy the
fruits of his transgression. The example of those wretches, continually
before his eyes, makes a much greater impression on him than a punishment,
which instead of correcting, makes him more obdurate.
The punishment of death is pernicious to society, from the example of
barbarity it affords. If the passions, or the necessity of war, have taught
men to shed the blood of their fellow creatures, the laws, which are
intended to moderate the ferocity of mankind, should not increase it by
examples of barbarity, the more horrible as this punishment is usually
attended with formal pageantry. Is it not absurd, that the laws, which
detest and punish homicide, should, in order to prevent murder, publicly
commit murder themselves? What are the true and most useful laws? Those
compacts and conditions which all would propose and observe in those moments
when private interest is silent, or combined with that of the public. What
are the natural sentiments of every person concerning the punishment of
death? We may read them in the contempt and indignation with which every one
looks on the executioner, who is nevertheless an innocent executor of the
public will, a good citizen, who contributes to the advantage of society,
the instrument of the general security within, as good soldiers are without.
What then is the origin of this contradiction? Why is this sentiment of
mankind indelible to the scandal of reason? It is, that, in a secret corner
of the mind, in which the original impressions of nature are still
preserved, men discover a sentiment which tells them, that their lives are
not lawfully in the power of any one, but of that necessity only which with
its iron sceptre rules the universe.
What must men think, when they see wise magistrates and grave ministers of
justice, with indifference and tranquillity, dragging a criminal to death,
and whilst a wretch trembles with agony, expecting the fatal stroke, the
judge, who has condemned him, with the coldest insensibility, and perhaps
with no small gratification from the exertion of his authority, quits his
tribunal, to enjoy the comforts and pleasures of life? They will say, "Ah!
those cruel formalities of justice are a cloak to tyranny, they are a secret
language, a solemn veil, intended to conceal the sword by which we are
sacrificed to the insatiable idol of despotism. Murder, which they would
represent to us an horrible crime, we see practised by them without
repugnance or remorse. Let us follow their example. A violent death appeared
terrible in their descriptions, but we see that it is the affair of a
moment. It will be still less terrible to him who, not expecting it, escapes
almost all the pain." Such is the fatal though absurd reasonings of men who
are disposed to commit crimes, on whom the abuse of religion has more
influence than religion itself.
If it be objected, that almost all nations in all ages have punished certain
crimes with death, I answer, that the force of these examples vanishes when
opposed to truth, against which prescription is urged in vain. The history
of mankind is an immense sea of errors, in which a few obscure truths may
here and there be found.
But human sacrifices have also been common in almost all nations. That some
societies only it either few in number, or for a very short time, abstained
from the punishment of death, is rather favourable to my argument; for such
is the fate of great truths, that their duration is only as a flash of
lightning in the long and dark night of error. The happy time is not yet
arrived, when truth, as falsehood has been hitherto, shall be the portion of
the greatest number.
I am sensible that the voice of one philosopher is too weak to be heard
amidst the clamours of a multitude, blindly influenced by custom; but there
is a small number of sages scattered on the face of the earth, who will echo
to me from the bottom of their hearts; and if these truths should happily
force their way to the thrones of princes be it known to them, that they
come attended with the secret wishes of all mankind; and tell the sovereign
who deigns them a gracious reception, that his fame shall outshine the glory
of conquerors, and that equitable posterity will exalt his peaceful trophies
above those of a Titus, an Antoninus, or a Trajan.
How happy were mankind if laws were now to be first formed! now that we see
on the thrones of Europe benevolent monarchs, friends to the virtues of
peace, to the arts and sciences, fathers of their people, though crowned,
yet citizens; the increase of whose authority augments the happiness of
their subjects, by destroying that inter. mediate despotism which intercepts
the prayers of the people to the throne. If these humane princes have
suffered the old laws to subsist, it is doubtless because they are deterred
by the numberless obstacles which oppose the subversion of errors
established by the sanction of many ages; and therefore every wise citizen
will wish for the increase of their authority.